No. 397.
Mr. Evarts to Mr. Christiancy.

No. 20.]

Sir: Your dispatch (No. 7) of the 29th of April last has been received. It relates to neutral rights and the rights of peaceable and unarmed citizens in bombarded towns. The general views upon these subjects which you express are approved, and you were judiciously cautious before you joined your diplomatic colleagues in signing the protest which was addressed to the commander of the Chilian fleet, to require that paper to be so changed as to make the protest dependent upon the truth of the facts which originally was assumed. The prudence of this step is understood to have since been illustrated by the disclosure that the bombardment of at least one of the points named was by no means unprovoked, but was in retaliation for the firing upon boats of the Chilian squadron which approached the port under a flag of truce for the purpose of announcing the blockade. The firing upon a flag of truce is notoriously one of the gravest breaches of the laws of war which a belligerent can commit, and is held to justify severe measures of retaliation, such as were adopted in the instance adverted to.

Although the policy of this government has heretofore shown a leaning towards neutral rights, this has never been or intended to be such as to extinguish the just rights of belligerents, especially of comparatively weak powers. It is apprehended that the capitalists of great European States, who have heavy investments in the funds and in the trade of the South American countries, are so alarmed about their interests that they may not be indisposed to deny any belligerent rights to those countries in the war now unhappily on foot. Undoubtedly they endeavor to impress their views and their anxieties upon their governments at home. This department is not aware how these may have been received. It is hoped, however, that in deciding upon the subject that no neutral will omit to bear in mind that an acknowledgment of the independence of the belligerents implies a concession to them of all the rights in that character which they may claim under the public law, however the exercise of those rights may infringe upon the interests of neutrals.

The war adverted to is much to be deplored and, for the sake of humanity at least, it is hoped that it may soon be brought to an honorable close. Although our own citizens have a much smaller interest in this than those of European countries, complaints upon the subject, especially from owners of vessels in the carrying trade, have reached this Department. Hostilities in this case, however, are not likely to be soonest ended, or peace to be permanent, if neutrals show such impatience as they would not be likely to acquiesce in if the situation were to be reversed.

In regard to the law applicable to the bombardment of unfortified places permit me to refer you to the opinion of Attorney-General Henry Stanbery, of the 31st of August, 1866, relative to the bombardment of Valparaiso by the Spaniards. A manuscript copy of the paper is herewith transmitted to provide for the contingency of your not having a printed one.

I am, &c.,

[Page 884]
[Inclosure in Instruction No. 20.]

Sir: It appears from your letter of the 27th iustant that the American commercial houses of Wheelwright & Co. and Loring & Co., domiciled for commercial purposes at Valparaiso, sustained losses of their merchandise in the conflagration caused by the bombardment of that city by the Spanish fleet on the 31st of March last.

The question presented for my opinion is, whether a case is made for the intervention of the United States on behalf of these citizens for indemnity against Spain or Chili?

I do not see any ground upon which such intervention is allowable in respect to either of those governments.

The bombardment was in the prosecution of an existing war between Spain and Chili. Although, under the circumstances, it was a measure of extreme severity, yet it cannot be said to have been contrary to the laws of war, nor was it unattended with the preliminary warning to non-combatants usual in such cases.

It does not appear that in carrying on the bombardment any discrimination was made against resident foreigners or their property. On the contrary, there was at least an attempt to confine the damage to public property.

Then, as to the Chilian authorities, it does not appear that they did or omitted any act for which our citizens there domiciled have a right to complain, or that the measure of protection they were bound by public law to extend to those citizens and their property was withheld.

No defense was made against the bombardment, for that would have been fruitless and would have aggravated the damage, as Valparaiso was not then fortified, and no discrimination was made by those authorities between their own citizens and foreigners there domiciled. All shared alike in the common disaster.

The rule of international law is well established that a foreigner who resides in the country of a belligerent can claim no indemnity for losses of property occasioned by acts of war like the one in question.

The bombardment of Copenhagen by the British in 1807 is a notable illustration of this rule. Immense losses were sustained by foreigners domiciled in that city. There was no previous declaration of war against Denmark, and no reasonable ground upon which the bombardment could be justified, and yet no reclamation upon the footing of these losses was ever admitted by Great Britain. The bombardment of Greytown, in May, 1854, by the United States sloop of war Cyane, is another instance of this rule. Losses were sustained by French citizens there domiciled, from the fire of the Cyane. A petition to the United States from those parties for indemnity was presented through the French minister, then resident at Washington, but without the express sanction of his government. Upon full consideration, this petition was refused. Mr. Marcy, then Secretary of State, in answer to the claim holds the following language: “The undersigned is not aware that the principle that foreigners domiciled in a belligerent country must share with the citizens of that country in the fortunes of war, has ever been seriously controverted or departed from in practice.”

I have therefore to repeat that I am of opinion no ground is laid for the intervention of the United States in favor of these parties.

I am, &c.,


Hon. Wm. H. Seward,
Secretary of State.